ࡱ> Y[X%` 4bjbjٕ :Xi+P'  8888p<L!***   #!%!%!%!%!%!%!$"h$lI! I!**^!PPP**#!P#!PP* ] p8z Dt!0!,d%d%d%+ "+PCW   I!I!^   !$ $  SEQ CHAPTER \h \r 1Dept of Transportation v. Anonymous OATH Index No. 1997/07 (July 2, 2007), affd, NYC Civ. Serv. Commn Item No. CD08-04-SA (Feb. 6, 2008) Evidence found sufficient to support finding that highway repairer tested positive for cocaine. Due to two previous positive drug tests, termination recommended. On appeal, the Civil Service Commission affirmed the penalty of termination. _____________________________________________________ NEW YORK CITY OFFICE OF ADMINISTRATIVE TRIALS AND HEARINGS In the Matter of DEPARTMENT OF TRANSPORTATION Petitioner - against - ANONYMOUS Respondent ______________________________________________________ REPORT AND RECOMMENDATION JOHN B. SPOONER, Administrative Law Judge This is a disciplinary proceeding referred by the petitioner, the Department of Transportation, pursuant to section 75 of the New York State Civil Service Law. Petitioner alleges that respondent, a highway repairer, tested positive for cocaine. At the hearing held before me on June 11, 2007, petitioner presented the testimony of a toxicologist and five other witnesses concerning the April 9, 2007 collection from respondent of a urine specimen, which was later found to contain cocaine. Respondent called no witnesses and offered no evidence. For the reasons provided below, I find that petitioner's proof established that respondent tested positive for cocaine and recommend that he be terminated. ANALYSIS The charges here allege that on April 9, 2007, respondent submitted a urine sample which tested positive for cocaine. Respondent did not dispute petitioners evidence demonstrating that on April 9, 2007, he was selected pursuant to a random testing procedure for drug testing, that he submitted a urine sample, and that toxicology tests showed this sample contained cocaine. As a preliminary matter, I reject respondents challenge to the admissibility of two prior positive drug tests. This issue was the basis for a pretrial motion that the disciplinary hearing be postponed pending the arbitration of a union grievance. In support of the motion, respondents counsel argued that the two prior positive drug tests were informal disciplinary actions which were required to be expunged pursuant to Mayors Executive Order No. 16. This motion was denied on June 1, 2007, in a decision which found respondents legal arguments to be without merit. Respondents counsel renewed his objection to the prior drug test results at the hearing. Petitioner offered as exhibits two stipulations and drug test forms (Pet. Exs. 10 and 11). These documents showed that respondent tested positive for cocaine on August 5 and November 19, 1998. After the first positive test, he entered into a stipulation under which he accepted a one-year probation and a 15-day suspension and agreed to undergo treatment with the Employee Assistance Unit. After the second test, he then entered into a second stipulation accepting a two-year probation and another 15-day suspension. In both stipulations, respondent waived any and all disciplinary rights under any applicable laws. As explained by petitioners counsel, the proof on these prior positive drug tests, while not establishing misconduct, did demonstrate that the Department had complied with the drug policy by refraining from bringing disciplinary charges against respondent for his first positive cocaine test. See Department Controlled Substance and Alcohol Abuse Policy (Pet. Ex. 7) at VII. The prior drug tests were therefore relevant, respondents objection was overruled, and the evidence regarding the two prior drug tests was admitted. Patricia Breglio, director of employee relations, described the Departments drug testing policy, which is mandated by federal regulations dealing with employees in safety-sensitive positions. Highway repairers such as respondent are subject to random drug testing and, if they test positive on a first test, must be removed from service until they agree to treatment. See Pet. Ex. 7 at VII (3). A consulting company named Clarity Testing Services administers the Departments drug testing program (Tr. 19-22). Dr. Jeffrey Altholz, president of Clarity, testified that his company utilizes collection and testing procedures which comply with federal guidelines and provide for a scientifically valid random selection of employees to be tested (Tr. 41-42). Johanna DeNiet, the director of the Department testing program, indicated that, on April 9, 2007, Clarity staff notified her that respondent was on the random list of employees to be tested. Respondent was therefore ordered to report for testing later that day (Tr. 38). On April 9, 2007, respondents urine specimen was collected by a Clarity employee named Agnes Paez. Ms. Paez testified that, in collecting respondents specimen, she followed standard testing procedures which she had been trained and certified to follow. She instructed the employee to provide urine in a cup, confirmed that the urine provided was of sufficient quantity and at an acceptable temperature, sealed the specimen into two vials or splits, had the employee sign a chain-of-custody form (Pet. Ex. 2), and then sent the samples to a lab named Quest Diagnostics to be analyzed (Tr. 28-35) The lab package from Quest (Pet. Ex. 13) shows that respondents sample was received by the lab on April 11, 2007. After an initial EMIT test of the sample came up positive for cocaine, a second GCMS test was conducted on another sample. This test indicated that respondents urine contained cocaine at a concentration of 569 nanograms per milliliter. The cutoff for a positive cocaine result is 150 nanograms per milliliter. Dr. Michael Lehrer, a toxicologist retained by Quest, testified that, after reviewing the data from the test results, he certified that the results should be reported back to the Department (Tr. 38-63). Dr. Stanley Platman, a toxicologist for Clarity, testified that he also reviewed the lab package and then telephoned respondent on April 13, 2007. He first asked respondent what medications he was taking. Respondent replied that he was using aspirin, motrin, amoxicillin, and codeine. Dr. Platman then informed respondent about the positive drug test result. Respondent said that the positive result was not possible. Dr. Platman gave respondent a telephone number at Clarity which he could call if he wanted a retest of his urine (Tr. 49-53). Respondent did not arrange for a retest. Ms. DeNiet indicated that, after respondents positive test results were received, he was removed from duty for 30 days (Tr. 30). Respondents positive drug reading clearly violated the Department drug policy, as alleged in charge I. This policy, which respondent acknowledged receiving (Pet. Ex. 8), provides that highway repairers, as well as several other categories of employees, may, after a first positive drug test, retain their jobs by agreeing to substance abuse counseling. Upon a second positive drug test, these employees may be terminated. The positive drug test also established that respondent ingested cocaine, an illegal drug, and hence violated the Department prohibition against engaging in conduct prejudicial to the good order and discipline of the Department, as charged in charge two. See Department Code of Conduct para. 2. In the written charges, petitioner also alleges that respondents positive drug test was a violation of another provision of the employee code of conduct. The Department code of conduct rule cited provides that employees may not [u]nlawfully manufacture, distribute, dispense, possess, or use a controlled substance in the workplace; consume, be impaired, or be intoxicated by alcohol or by any controlled substance, including but not limited to a narcotic, hallucinatory or other drug or substance, while on duty or representing the Department or the city in any capacity, or on DOT or other City property, or driving a DOT or other City vehicle. Department Code of Conduct para. 46. As pointed out by respondents counsel in his closing, no proof was offered at the hearing that respondent violated this rule. While it appears that the drug test took place at a time when respondent was on duty, no evidence was offered that he possessed, used, or was impaired by cocaine at that time. Petitioners counsel argued that the positive finding established impairment as a matter of law according to the federal regulation. However, my review of the relevant portions of the federal rules revealed no provision regarding impairment, although the rules do establish the levels at which positive findings are to be rendered as to both an initial screening test and a confirmatory test. See 10 C.F.R. part 26 Appendix A. Based upon the uncontroverted proof, I find that respondent tested positive for cocaine in violation of the Departments drug policy (Pet. Exs. 7 and 9) prohibiting employees from using illegal substances. Both charges one and two should be sustained. FINDINGS AND CONCLUSIONS Charges one and two should be sustained in that on April 9, 2007, respondent provided a urine sample which tested positive for cocaine in violation of the Department Controlled Substance and Alcohol Abuse Policy and Department Code of Conduct paragraph 2. RECOMMENDATION Upon making the above findings, I requested and received information regarding respondents personnel history. He was appointed to the Department in 1989 and, as noted above, was suspended twice in 1998 for 15 days each time for two prior positive drug tests. While respondents 18 years of service provide some grounds for mitigation, his prior drug violations demand a far more severe penalty. In fact, there are multiple reasons to conclude that respondent should be terminated for his most recent positive drug test for cocaine. Respondent works in a safety sensitive job where he is required to drive vehicles and to possess a drivers license. A City driver impaired by cocaine is a threat to the public and any driver who uses cocaine must be prohibited from driving. Respondent is on notice of the Department drug policy, which expressly warns that a second positive drug test will result in termination. He has received the benefit of two chances to undergo drug counseling and rehabilitation after his previous two positive drug tests and he evidently continues to use cocaine. Finally, other Department employees have been terminated for such drug violations. See Dept of Transportation v. Doe, OATH Index No. 2035/04 (Nov. 26, 2004), aff'd, NYC Civ. Serv. Comm'n Item No. CD06-64-SA (July 10, 2006). Accordingly, based upon his repeated use of illegal drugs, I recommend that respondent be terminated from his position as a highway repairer. John B. Spooner July 2, 2007 Administrative Law Judge SUBMITTED TO: JANETTE SADIK-KHAN Commissioner APPEARANCES: TONYA MORGAN, ESQ. ERICA CARAWAY, ESQ. Attorneys for Petitioner SCHWARTZ, LICHTEN & BRIGHT, P.C. Attorneys for Respondent BY: STUART LICHTEN, ESQ.  Pursuant to title 49, section 40.323(2)(b) of the Code of Federal Regulations, respondents name has been withheld from publication. See Dept of Environmental Protection v. Anonymous, OATH Index No. 977/05 (June 3, 2005), revd, Commr Dec. (July 27, 2005); Dept of Transportation v. 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